And about time for rights to nature? By Begonia Filgueira

It took until 1998 for the UK Parliament to incorporate human rights directly into the domestic legal system. In light of the dangers posed by climate change, is it time to go one step further and grant rights to the Earth herself?

Bolivia has done just that – the Mother Earth Rights Law (Ley 071(21 December 2010)) has now come into force. Congratulations to everyone involved in drafting and promoting this law. With Evo Morales’ Party (the Movement Towards Socialism) having a majority in Congress and the Senate, this law passed without much opposition. It is a wonderful legal milestone, which I have been advocating for a number of years as the only way to balance the rights that humans have with the protection of the Planet and ultimately the human race.

I will explore the actual text of the law and its practical implications for a country that has both the cultural heritage to support this law and a number of environmental issues arising from its profitable mining industry which can put in peril the very cycles of Mother Earth it wishes to protect. The implications of this law are however not only limited to Bolivia as there is a proposal for a UN Declaration of Mother Earth Rights kicking around the UN, which I hope will be further discussed at Rio 2012.

The Law itself

The First Article of this law sets out its objective:

“To recognise the rights of [Mother] Earth, and the obligations and duties of a Pluri-National State and of society to guarantee these rights”

The law then goes onto introduce a number of principles which are to govern both its interpretation and implementation, namely:

Harmony – human activities must be guided by the dynamic cycles and inherent proceeds of the Earth;

The good of the collective – the rights of society as a whole within the framework of Earth Rights will prevail over rights granted to individuals;

Guaranteeing the Earth’s regeneration – human acts must preserve the Earth’s capacity to regenerate itself acknowledging that the Earth has a limited capacity to absorb harm before its function and structure are altered;

Respect and protection of the Earth’s Rights – the State, individuals and society have a duty to respect and protect the Earth’s Rights for the good of present and future generations;

Non commercialisation – life processes and those things that sustain them shall not be commercialised nor be part of a person’s private property;

Multiculturalism – in order to exercise the Rights of the Earth we must recognise the values, knowledge, lore, technology, science, ability of those cultures that wish to live in harmony with Mother Earth.

So in one text Bolivia has recognised the Rights of Nature, society and those of future generations. Further this law enshrines principles which are to influence interpretation of the wider body of Bolivian law. Will “La Paz” be so appropriately named as to kick start a more harmonious and peaceful relationship between humans and the planet?

“ .. the living and dynamic system formed by the indivisible community of all life systems and living things whom are interdependent, interrelated and which complement each other sharing a common destiny. Mother Earth is considered sacred by worldwide communities and indigenous peoples.”

promoting mutually enhancing relationships for the well being of all the Earth Community;

being guided by community ecological governance.

The Bolivian definition of Mother Earth is charged with Gaian and the above Earth Jurisprudential principles. The Earth is recognised as a “..living and dynamic system..” – something James Lovelock discovered some time ago and is now widely recognised by the international scientific community.

This definition reflects exactly what we had in mind when we theorised about how laws could best promote mutually enhancing relationships for the well being of all the Earth Community. It recognises the inter-connectedness between humans and non humans. It recognises that there is an Earth Community, not only a human community, “which shares a common destiny” and has reciprocal needs.

The “sacred” characteristic of Mother Earth reflects both the Earth Centered Governance and the community ecological governance elements of this definition. Sacred may be a word that does not sit comfortably with those in the west who could criticize it for its religious connotations. However, this is not the language used by any church but by the indigenous communities of Bolivia and around the world to express the higher importance of the Earth for our survival. In its Earth Centeredness the law uses the word sacred to express its respect for the intrinsic value of the Earth and all its members, to value the Earth for what it already is.

To name the Earth as sacred is to communicate the intimate relationship between humans and the rest of the natural world where human conduct is regulated so as not to cause irreparable damage to the environment and its ecosystems. By lauding the Earth as sacred it tells those interpreting laws that the harmonious survival of ecosystems is more important than the exploitation of the Earth for quick enrichment of the minority. The Earth is elevated to the status of a goddess by the indigenous community in Bolivia – she is Pachamama, part of the local lore/cultural heritage (community governance) of the Bolivian people and the Andean communities.

Legal status of the Earth and collective rights

The Bolivian law will cause two fundamental changes to the legal status of the Earth. First of all it will grant the Earth legal personality. Secondly the Earth is characterised as being of “public interest”.

Giving the Earth legal personality means that it can, through its representatives, bring an action to defend its rights. Like a company or a ship currently can. This will put an end to much of the legal standing issues that NGOs come across when trying to stand in and defend nature from overexploitation or damage. I can very well see a scenario where claims for climate change are made against industries which are emitting within legal limits but where environmental damage is being caused. I can predict that the law granting rights to Mother Earth will drive environmental policy at the highest level.

To say that the Earth is of public interest is also a major shift. There are many EU and UK laws which allow the public interest to trump over environmental concerns; the public interest not being normally defined as the well-being of the Earth community or the Earth, but determined largely by economic standards. By including the Earth in the public interest, there is an automatic shift from the human centric perspective to a more Earth community based perspective.

By including humans as part of those that have Earth rights, the Bolivian text has cleverly not only given rights to nature but also granted humans the right to a clean environment. Further it confirms that the interests of the Earth are in line with those of humans, our inextricable link for survival impossible to deny.

And if there is a conflict between human (individual) and Earth/human (collective) rights, how is this meant to be resolved? The law says that the bar, the limit will always be the destruction of living systems. As a lawyer I will be extremely interested in how the courts interpret this. Does it mean the complete destruction of a species, or ecosystem; or the probably/possible/likely/risk of this occurring?

So what are the Earth rights to be granted by Law? The Bolivian Law mentions the following, although it allows for flexibility and inclusion of other future rights: the right to life; the right to non corruption of the diversity of life; the right to water necessary to maintain living systems; the right to clean air; the right not to have the balance of the Earth cycles altered; the right to restoration of harm caused directly or indirectly by humans; and the right to live free of contamination including from toxic substances and radioactivity.

The above don’t seem many, only 7 in number; but adopting these rights is of enormous consequence. They would remodel our society and how we live, including our economic systems, which are in fact not working very well. It would allow us to come up with a great new political and economic plan for the future.

More on this in my next Bolivian blog.

Begonia Filgueria is an environmental lawyer and consultant. This post was first published at www.eric-group.co.uk. The UK Human Rights Blog is very grateful for her permission to reproduce it here.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

You have to love legislation like this. It reminds me of the Government of the Maldives holding an under water meeting, to complain about sea level rise. In case you did not know this is the same Government who have recently commissioned a new airport at sea level.

As for Bolivia as a country 127th on the IMF list of GDP per head it might be better if the politicians spend a bit more time trying to improve the wellbeing of their voters rather than passing law which I expect will simply be ignored.

The question about passing this legislation is if you give the earth personality who represents those interests? We can try sitting around chanting and see it we can listen to the voice of the earth. However, I expect we are going to come up blank.

In that case who knows what the earth really needs. I expect the writer will look to the NGO’s but I see no evidence they have any particular profound insight. They just recycle green, left wing, eco, twaddle.

Can I suggest the only place to look for such insight is how the earth treats its self. . The resent volcanic eruptions in Iceland show clearly the earth is quite content to have large amounts of polluting materials poured into the atmosphere. You only have to look at the common fox, which will kills anything it can, to show the earth approves whole heartedly of genocide.

Since it common for animal young to kill there brothers and sisters to survive, infanticide also seems acceptable.

As for the balance of nature which the writer quotes frequently. There is no evidence of any long term balance in the earths systems. Indeed, since the evidence suggests the earth has gone through ice ages, periods of extreme warmth, a long period dominated by dinosaurs, it may seem there is no balance at all.

A major challenge of our times is to re-design our governance systems, including laws, to make them consistent with the laws of the Earth.

We need to radically change track, as Bolivia has done with the Law of Mother Earth, and recognise that human beings are an inseparable part of the community of life on Earth. We need to get back a sense of balance with nature, rather than designing laws which actually encourage the destruction of the Earth (eg. making the pursuit of profit a legal obligation for companies in the Companies Act 2006).

Giving nature rights will be an important check on corporate power: it means that corporates will no longer be justified in treating nature as mere property. Instead, the ‘rights’ of nature will have to be properly balanced against the rights of humans and the ‘rights’ of corporates. We need more balance in our relationship with nature if we are to live on a healthy planet.

I am sure that the Bolivians and their supporters are acting sincerely and with the best of intentions.

I am not sure, however, that extraordinarily broad definitions of rights and obligations – which will enable pretty much anyone to litigate over anything – is the way to go about saving the planet. It is undemocratic to have the judiciary having that much power, as they effectively will, and secondly it will create far too much uncertainty in the law. No-one will invest in an economy where there is a risk of someone managing to object to whatever the investment is under the sweeping rights proposed. The uncertainty inherent in the ‘principles’ proposed breaches the rule of law.

Thirdly, I hate to say it, being a lawyer myself, but lawyers simply aren’t the best placed to determine great economic, scientific and cultural issues. As I wrote about here – http://timesandotherthings.blogspot.com/2011/01/climate-protests.html – determining things such as the national energy policy involves highly complex questions requiring primarily engineering, chemical, economic and physical science expertise – how much power is needed, how much it is possible to generate and by what means, how much each option will cost, and what environmental effects will follow.

To be blunt, lawyers and judges are not particularly qualified to answer any of those questions – any more than scientists and economists are best placed to determine technical legal points.

Incidentally it is simply not true to say that it took “until 1998 for the UK Parliament to incorporate human rights directly into the domestic legal system. ” You mean the Human Rights Act (which didn’t take effect that year anyway) incorporating the ECHR. That in turn was pretty much based on the English legal system and the rights which the common law had evolved over centuries. We in Britain should be a bit more proud of the ancestry of our liberties – imperfect of course, but still far superior to most countries past and present.

James – your point about the Law of Mother Earth being anti-democratic seems odd given that the Law of Mother Earth had the strong support of the people of Bolivia. Secondly, the role of law is much broader than what happens in the courtroom. It’s also about effecting a change in culture – so that rights don’t get breached in the first place.

The Law of Mother Earth is an expression of the values in Bolivian society. Bolivia has a large indigenous population and they feel a strong spiritual connection with the land that cannot be simply expressed in economic terms.

Tony,
I have to disagree with your statement separating economic wellbeing from environment rights. Its that kind of provincial technocratic reduction that externalises nature from humankind.

Bolivian people have suffered because exploitation of mineral wealth and degradations of the local environment. It is not out of vanity that this policy emerges.

I applaud them on their epistemic disobedience and hope that more countries and societies build on this position rather than just taking much promised bribery/adaptation m oney from industrialised nations.

Im sad to hear that the bolivian government is finding consistency problematic. this is what happens when you dont have much power. It seems that they are relaxing the anti GM policy towards the USA.

The rights of organism not to have their genetic fabric muddled around with by corporations was a key mother earth right no?

Melanie – not odd at all. Everyone is in favour of notions such as fairness, equality, justice etc until one comes to define them. This is the debate we are having in this country about Strasbourg and the European Convention. There is (one hopes) a broad consensus that the rights to life, family life, privacy, property etc are all A Good Thing, but there is not at all a consensus about how Strasbourg and indeed domestic courts are applying them.

For judges to have a sweeping discretion to develop wide principles into detailed prescriptions and override the legislature on a regular basis may be a good thing, depending on whether one happens to agree with the particular decisions, but democratic it is not. Nor is it necessarily preserving freedom – the hapless state of the libel laws under Eady were neither democratic nor an example of judges preserving rights of the subject in the face of an oppressive executive/legislature – quite the opposite, as the British Chiropractic v Singh abomination showed.

Follow UKHRB on Twitter

Disclaimer

This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.